Vanderhoof v. Berk

• Decision Date: 21 December 2015
• Docket Number: No. 1–13–2927.,1–13–2927.
• Citation: 47 N.E.3d 1080
• Parties: Carol VANDERHOOF, as Special Administrator of the Estate of Paul Vanderhoof, Deceased, Plaintiff–Appellee, v. Richard S. BERK, M.D. and NorthShore University HealthSystem Faculty Practice Associates, Defendants–Appellants (NorthShore University HealthSystem d/b/a Glenbrook Hospital, Defendant).
• Court: United States Appellate Court of Illinois

47 N.E.3d 1080

Carol VANDERHOOF, as Special Administrator of the Estate of Paul Vanderhoof, Deceased, Plaintiff–Appellee
v.
Richard S. BERK, M.D. and NorthShore University HealthSystem Faculty Practice Associates, Defendants–Appellants (NorthShore University HealthSystem d/b/a Glenbrook Hospital, Defendant).

No. 1–13–2927.

Appellate Court of Illinois, First District, First Division.

Dec. 21, 2015.

47 N.E.3d 1085

Cassiday Schade, LLP, Chicago (Julie A. Teuscher, Sandra G. Iorio, and Jonathan E. Cavins, of counsel), for appellants.

Lipkin & Higgins, Chicago (Peter F. Higgins, of counsel), and Law Offices of Lynn D. Dowd, Naperville (Lynn D. Dowd and Frances Leyhane III, of counsel), for appellee.

OPINION

Presiding Justice LIU delivered the judgment of the court, with opinion.

¶ 1 On January 12, 2009, Paul Vanderhoof was admitted to the hospital for the surgical removal of his gallbladder, also known as a cholecystectomy. During the procedure, the surgeon severed the patient's common bile duct in error after he misidentified it as the cystic duct. Another surgeon was subsequently called in to perform emergency reconstructive surgery to repair the severed duct. Vanderhoof remained in the hospital for a week following the surgery, during which time he was treated for an intermittent, controlled bile leak. A day after his discharge from the hospital, he was readmitted with complaints of chest and abdominal pain. For the next two months, Vanderhoof remained an inpatient at two hospitals and a rehab nursing facility. He continued to suffer bile leakage, developed a large liver abscess and pneumonia, and ultimately succumbed to septic shock. He died in the hospital on March 19, 2009.

¶ 2 On December 22, 2010, Vanderhoof's wife, Doris, brought a wrongful death and survival action against the surgeon, Dr. Richard Berk, and NorthShore University HealthSystem, d/b/a Glenbrook Hospital.¹ NorthShore University HealthSystem Faculty Practice Associates (NorthShore) was subsequently added as a defendant. After Doris passed away, her daughter, Carol Vanderhoof, became the special administrator of Vanderhoof's estate. Carol filed an amended complaint, alleging that during her father's cholecystectomy, Dr. Berk “[n]egligently and carelessly surgically transected” the common bile duct, “[f]ailed to perform the necessary precautionary methods to ensure a safe gallbladder removal,” and “[f]ailed to call for assistance from a specialist with expertise in biliary surgery ” before cutting the common bile duct. Plaintiff further alleged that her father died “[a]s a direct and proximate result of one or more of the foregoing negligent acts and/or omissions.”

¶ 3 A six-day jury trial commenced on January 25, 2013, during which the parties presented testimony from their respective fact and expert witnesses. At the close of the evidence, defendants presented a motion for a directed verdict, which the circuit court denied. Following deliberations, on February 1, 2013, the jury returned a verdict in favor of plaintiff and against defendants Berk and NorthShore. The jury awarded damages in the amount of

47 N.E.3d 1086

$910,742.79. The circuit court entered judgment on the verdict and award. Defendants filed a posttrial motion for a judgment notwithstanding the verdict (judgment n.o.v. ), or, alternatively, for a new trial. Defendants asserted they were entitled to a judgment n.o.v. on the grounds that the evidence at trial failed to establish that Dr. Berk acted negligently or that any alleged negligence was the proximate cause of Vanderhoof's injuries. The circuit court denied the motion on August 19, 2013, and defendants timely filed their notice of appeal on September 13, 2013.

¶ 4 On appeal, defendants contend that: (1) the circuit court erred in denying their motion for judgment n.o.v.; (2) the court abused its discretion in admitting evidence of deviations from the standard of care in the absence of expert testimony that such deviations proximately caused the decedent's injuries; (3) the court abused its discretion in admitting evidence of medical expenses without a proper foundation; (4) statements made by plaintiff's counsel at trial were prejudicial and denied defendants a fair trial; and (5) the jury's verdict was against the manifest weight of the evidence. For the reasons that follow, we affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Gallbladder Surgery

¶ 7 In 2008, Vanderhoof presented on several occasions to his primary care physician, Dr. David Lerner, complaining of heartburn, stomach pain, back pain, nausea, and diarrhea. Dr. Lerner determined Vanderhoof had symptoms of gallbladder disease and referred him to Dr. Berk for a surgical consult. Following the consult, Vanderhoof decided to undergo surgery to remove his gallbladder.

¶ 8 On January 12, 2009, after receiving preoperative clearance from Dr. Lerner, Vanderhoof underwent the cholecystectomy at Glenbrook Hospital. Dr. Berk initially proceeded with a laparoscopic procedure, but soon converted to an open procedure after encountering significant inflammation around the gallbladder. After working to dissect the patient's gallbladder from the surrounding structures, Dr. Berk transected, or cut through, what he thought was the cystic duct; instead, it turned out, the severed structure was the common bile duct. Immediately afterward, Dr. Berk called in his colleague, Dr. Emilio Barrera, who continued with the dissection until he was able to confirm that the common bile duct had been cut. Dr. Barrera then called Dr. Marshall Baker, a hepatobiliary specialist, to repair the severed duct. Dr. Baker completed the gallbladder dissection, and then performed a Roux–en–Y reconstruction, a procedure by which the flow of bile is rerouted through a loop of intestine. The entire surgery, including the reconstruction, lasted approximately eight hours.

¶ 9 Following his surgery, Vanderhoof suffered from an intermittent bile leak, which required the insertion of two drains. He was initially discharged a week after the surgery, on January 19, but was readmitted the next day. Vanderhoof spent another month in the hospital before he was briefly admitted to a nursing and rehab facility on February 20. Four days later, he had to be admitted to Evanston Hospital. Toward the end of this hospitalization, he became severely septic, and passed away on March 19. Dr. Baker completed and signed the death certificate a day or two thereafter, and listed “bile duct injury ” as “the underlying cause, disease or injury that initiated the events resulting in death last.”

¶ 10 B. Evidence at Trial

¶ 11 At trial, the jury heard testimony from Dr. Berk, as well as the two other

47 N.E.3d 1087

surgeons and a physician's assistant who attended to Vanderhoof during the surgery. Both sides also presented their respective experts. The following evidence, as pertinent to this appeal, was elicited at trial.²

¶ 12 1. Dr. Jonathan Finks

¶ 13 Plaintiff's expert, Dr. Jonathan Finks, is a board-certified general surgeon who has performed four to six laparoscopic cholecystectomies per month since 2005, of which twelve have been open procedures. He explained that during a gallbladder removal procedure, whether laparoscopic or open, the surgeon must first identify the cystic duct and the cystic artery that attach to the gallbladder. Once he has identified these structures, the surgeon then places metal clips on each of them and cuts between the clips. Dr. Finks also explained that the common bile duct, which delivers bile to the small intestine for fat digestion, is not directly connected to the gallbladder but is formed where the cystic duct joins the common hepatic duct.

¶ 14 Dr. Finks testified that the top priority in performing a gallbladder dissection is to make sure the common bile duct is not cut. When this occurs, it is a “devastating injury.” For this reason, he explained, it is important for a surgeon to conclusively identify a structure before cutting it. According to Dr. Finks, there are four precautionary steps that a reasonably careful surgeon performing a cholecystectomy should employ to minimize the chance of misidentifying and cutting the common bile duct. The first step is to utilize a technique called the critical view of safety, or CVOS, which involves a three-part process: (1) dissection of an area called the Triangle of Calot; (2) removal of the infundibulum, i.e., the bottom part of the gallbladder, from the liver; and (3) confirmation that the two structures going into the gallbladder are not heading back to the liver. Dr. Finks testified that achieving the CVOS results in a clear view of the patient's anatomy and helps to ensure the common bile duct will not be severed inadvertently. In his opinion, the CVOS is the safest approach for performing both laparoscopic and open procedures, and the standard of care requires a reasonably careful surgeon to try to achieve the CVOS before cutting a structure.

¶ 15 Second, Dr. Finks stated, if the CVOS cannot be achieved, the surgeon should take alternative steps to correctly identify the common bile duct so as to avoid injuring it. One option is to perform an intraoperative cholangiogram, or IOC, a procedure in which a small hole is made in the duct and a dye agent is...